Change in filibuster rule restores possibility of functioning Legislative, Executive and Judicial branches of government...
By Ernest A. Canning on 11/22/2013, 6:05am PT  

[This article now cross-published by The Progressive...]

It took awhile. A few years even. But, on Thursday, Senate Majority Leader Harry Reid (D-NV) finally decided he'd had enough.

By a majority vote of 52 to 48, the U.S. Senate changed their rules to partially end the filibuster, invoking what some refer to as the so-called "nuclear option". The rule change, which will permit an up-or-down majority vote on all Presidential nominations for executive and judicial office (with the exception of Supreme Court nominations), is better described as the "democracy option".

The rule change, for now, would have no effect on the use of the filibuster by the minority to block legislation. Three Democrats, Carl Levin (D-MI), Joe Manchin (D-WV) and Mark Pryor (D-AR), voted with Republicans to sustain the previous filibuster rules, last changed in 1975 when the Senate amended their Standing Rules to reduce the number of Senators required for cloture --- to end debate --- from two-thirds to three-fifths.

Although there had been noise, and urging from many quarters, for a dramatic change of the filibuster rules for some time, especially after Senate Minority Leader Mitch McConnell (R-KY) drew the dubious distinction of becoming the first U.S. Senator in history to filibuster his own bill, the impetus became particularly strong over the past several weeks with the outrageous block put on the nominations of every one of President Obama's nominations to the important D.C. Circuit Court of Appeal, the court which oversees federal regulations.

The result of yesterday's rule change in the U.S. Senate could well be a return, at least in part, to the Constitutionally designed functions of three different branches of government, as envisioned by our founding documents. It may also mark an end to a thirty-year scheme by Republicans to pack the courts with radical, right wing jurists...

As The BRAD BLOG recently reported, after the Senate Republican minority had successively blocked the nominations of three highly qualified women to the D.C. Circuit Court of Appeal, Sen. Elizabeth Warren (D-MA), a former Harvard Law Professor, forcefully argued that Senators not only had the right but, indeed, a constitutional duty to change the filibuster rules.

Warren accused Republicans of helping to continue a thirty-year long effort to "rig the courts...in favor of the wealthy and the powerful" and "for no reason other than to nullify the President's constitutional authority" and the results of the November 2012 Presidential election.

After that speech, this past Monday, Republicans once again used the filibuster to block an up-or-down vote on a fourth Obama nominee to the D.C. Circuit Court of Appeal, U.S. District Court Judge Robert L. Wilkins, an African-American. Again, the effort was not by way of objection to the particular nominee, but rather an objection by Republicans to filling those seats at all with nominations of the current Democratic President. It is part and parcel of the GOP's unprecedented use of the once arcane, now commonplace parliamentary procedure.

After the Wilkins filibuster, NBC observed that Senate Republicans had gone from blocking nominees out of "concerns about ideology or qualifications [to a blanket challenge of] the president's ability to appoint ANYONE to these vacancies." Citing that report, Right Wing Watch argued that this amounted to an "unprecedented blockade" that had left "Democrats with few options." Right Wing Watch outlined the hypocrisy of twelve Senate Republicans who had been "the most strident opponents of filibustering judicial nominees," in the past, until they "turned master obstructers" during the Obama Presidency.

For example, one of the twelve, Senate Minority Leader McConnell had said in 2005, "Any President's judicial nominees should receive careful consideration. But after that debate, they deserve a simple up-or-down vote."

Republican Sen. John Cornyn of Texas argued in 2003 that "filibusters of judicial nominations are uniquely offensive to our nation's constitutional design." And Sen. Lindsey Graham of South Carolina, who was furious at the Democrats' majority vote to allow for a straight up-or-down majority vote on a President's non-Supreme Court judicial nominees, said back in 2005 that "filibustering judges" would "destroy the judiciary." He described the practice as "unconstitutional".

But, of course, that was when Republicans held the majority in the U.S. Senate under a Republican President.

It would probably be an understatement to suggest that Senate Republicans brought this upon themselves. "There is no historical precedent for the number of cabinet-level nominees that Republicans have blocked or delayed in the Obama administration," The New York Times observed last May in an op-ed entitled "Malicious Obstruction in the Senate."

The fact that the new filibuster rules apply to executive as well as judicial nominees is significant. As The BRAD BLOG recently reported, for the past five years, the Senate Republican minority successfully used the filibuster to prevent the Obama Administration from replacing Bush Administration holdover Edward DeMarco as head of the Federal Housing Finance Agency (FHFA). DeMarco has been described by opponents as "the single largest obstacle to meaningful economic recovery," who has steadfastly opposed all forms of debt relief to the underwater homeowners who had been the victims of the collapse of the Wall Street casino known as the bundled, mortgage-backed securities market. It is likely the Obama administration's nominee to replace DeMarco, Rep. Mel Watt (D-NC), will now finally be confirmed, five years after Obama was first sworn in to replace Bush.

Thursday's historic vote will not prevent the GOP minority in the Senate from continuing to use the filibuster with unprecedented frequency to block substantive legislation. Neither does it remove the ability of U.S. House Republicans to block legislation in that chamber with the so-called Hastert Rule, by preventing a combined majority of Democrats and moderate Republicans from voting up-or down on substantive legislation. The vote does, however, open the door to judicial and executive branches of government that function, once again, somewhat closer to the manner envisioned by the framers of the U.S. Constitution.

As aptly noted by The Nation's Reed Richardson in "Gone Nuclear: The Media Missed the GOP's Filibuster War on Government," the invocation of the so-called "nuclear option", "wasn't a win for Democrats as much as it was a win for democracy."

UPDATE: The L.A. Times front page coverage of yesterday's invocation of the "Nuclear Option!!!" was somewhat typical of much of yesterday's mainstream media coverage.

If all you saw was the coverage by the LA Times' Michael A. Memoli and Lisa Mascaro, you would never know any of the points made in our article above. For example, you'd have no knowledge of Sen. Warren's argument of the Constitutional duty of both the Executive and Legislative branches to fill Judicial branch vacancies on the federal bench, the GOP's thirty-year attempt to "rig the courts", or even the unprecedented obstructionism of Republicans using the filibuster in record numbers under this President.

Instead, they presented yesterday's historic rule change as simply an assault on minority rights that "brushed aside a century of congressional tradition and further embittered relations between the parties on an already deadlocked Capitol Hill." (Never mind that the modern filibuster rules were set in the 1970's, not "a century" ago.)

Typical of the "fair and balanced" charade by mainstream corporate stenographers, Memoli and Mascaro focused on "he said, she said" coverage without taking the time to consider the extent to which the "Democracy Option" was needed to remedy the very "deadlock" to which they referred. They suggested that the "White House seems resigned to a second term marked by Congressional paralysis," when, in fact, the whole point of yesterday's historic Senate vote was to end the paralysis that marred Obama's first term, at least with respect to executive and judicial nominees to the federal trial and intermediate appellate courts.

But "Nuclear Option!!!", it seems, is much sexier than explaining to readers what actually happened, why it was finally done, and why "Democracy Option" would have been a far more accurate and informative way to describe the historic change.

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Ernest A. Canning has been an active member of the California state bar since 1977. Mr. Canning has received both undergraduate and graduate degrees in political science as well as a juris doctor. He is also a Vietnam vet (4th Infantry, Central Highlands 1968). Follow him on Twitter: @Cann4ing.

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Article Categories: U.S. Constitution, Accountability, U.S. Senate, Barack Obama, Democrats, Republicans, Harry Reid, Bush Legacy, Elizabeth Warren, Mitch McConnell, Carl Levin